The Sherrod v. Brietbart appeal is now fully briefed (opening brief here, opposition brief here, and reply brief here) and ready for the oral argument, scheduled for March 15, 2013. (The case has also attracted amicus briefs, including from the District of Columbia, the ACLU and Public Citizen, and a host of news organizations).
The threshold question in Sherrod is whether the denial of an anti-SLAPP motion is immediately appealable under the collateral order doctrine of Cohen v. Beneficial Loan Corp. (The DC Court of Appeals recently held that it was not). Under Cohen, the appellants must show that the order would be effectively unreviewable on final appeal. In his opening brief, O’Connor cited a Ninth Circuit case finding that the California anti-SLAPP law grants defendants a right “in the nature of an immunity,” which justifies interlocutory appeal.
Sherrod counters that the Ninth Circuit also found that the Nevada and Oregon anti-SLAPP laws did not provide the type of immunity requiring immediate appeal and argues that the relevant text of the California law authorizing immediate appeal is lacking in the DC law. Therefore, she argues, DC must be grouped with Ninth Circuit decisions on the Nevada and Oregon laws and decisions by the Texas Court of Appeals, discussed here, denying immediate appeal.
O’Connor admits that the DC Code lacks explicit language, but argues the DC Council intended to grant defendants an absolute or qualified immunity from standing trial against meritless defamation claims similar to the qualified immunity granted to government officials in § 1983 claims – which the Supreme Court has found to be an issue immediately appealable as a collateral order. He cites legislative history suggesting the DC Council intended to create immunity from meritless claims, and also supported immediate appeals from an unsuccessful motion, but did not provide for immediate appeal for fear that it would violate the Home Rule Act.
After quoting a DC Council committee report, which stated that the purpose of the statute is to provide defendants with substantive rights to avoid a “costly and long legal battle,” O’Connor argues that this purpose would be defeated if defendants could not appeal denial of the special motion to dismiss until after trial. (Both the ACLU/Public Citizen and the DC amicus briefs argue that the statute provides immunity from suits).
On the other major issue presented by Sherrod – the Erie question of whether the anti-SLAPP statute applies in federal court – Sherrod’s opposition brief argues the proper Erie analysis is not whether the state law and federal rule directly conflict, but whether the federal rule answers the same question as the state law. Noting that O’Connor used the same arguments in his 12(b)(6) and anti-SLAPP motions, she argues that Federal Rule 12 and the anti-SLAPP motion answer the same question and so the federal rule must control.
As readers of this blog know, the Sherrod appeal presents two other issues: (a) whether the statute applies to a suit brought before its effective date; and (b) whether the anti-SLAPP motion was timely made.
On the “retroactivity” issue, Sherrod’s opposition brief responds directly to O’Connor’s assertion that courts apply the law in effect when the motion is made and that Sherrod’s legal rights are not affected because the statute does not alter the substantive law of libel by arguing that the statute did change the rules because, when she pled her claim, she did not have to show a likelihood of success to survive a motion to dismiss and would not have had to pay defendants’ costs if she lost.
Finally, on the timeliness issue, Sherrod argues that, although the defendants received two extensions in which to respond to the Complaint, neither she nor the district court could have understood the March 15 extension to include an anti-SLAPP motion because the law was not effective until March 30. In reply, O’Connor argues that the court’s orders were sufficiently broad to include all motions and that the district court and Sherrod could not have been ignorant of the soon-to-be-effective anti-SLAPP law.
Damien Smith, a George Mason law student and legal intern with LeClairRyan, authored this blog post.